ROBERT ALAN MCCARTNEY

v.

STATE OF FLORIDA

Third District Court of Appeal

State of Florida

Opinion filed August 19, 2026. Not final until disposition of timely filed motion for rehearing.

No. 3D25-2002 Lower Tribunal No. F19-14773

Robert Alan McCartney, Appellant,

vs.

State of Florida, Appellee.

An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Alberto Milian, Judge.

Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public Defender, for appellant.

James Uthmeier, Attorney General, and David Llanes, Senior Assistant Attorney General, for appellee.

Before SCALES, C.J., and FERNANDEZ and BOKOR, JJ.

SCALES, C.J.

A jury convicted appellant Robert Alan McCartney of one count of sexual battery with a deadly weapon or use of force likely to cause serious personal injury, and the trial court sentenced him to an upward departure sentence of life in prison. At sentencing, McCartney did not raise an Apprendi¹ objection that the trial court, rather than the jury, determined the factual basis for the upward departure sentence. This Court affirmed McCartney's conviction and sentence. See McCartney v. State, 400 So. 3d 34, 42 (Fla. 3d DCA 2024), review denied, No. SC2024-1619, 2025 WL 974637 (Fla. Apr.¹, 2025).

McCartney then filed a Florida Rule of Criminal Procedure 3.800(a) postconviction motion below that, for the first time, claimed his sentence was illegal under Apprendi. McCartney's rule 3.800(a) motion relied on the Florida Supreme Court's decision in Plott v. State, 148 So. 3d 90 (Fla. 2014), which held that a criminal defendant may raise an Apprendi claim in a rule 3.800(a) motion. On September 25, 2025, the trial court rendered the challenged order (“Order”) denying McCartney's rule 3.800(a) motion. McCartney timely appealed the Order.

While McCartney's appeal was pending, the Florida Supreme Court issued an opinion receding from its decision in Plott, “hold[ing] that rule

3.800(a) is not the proper vehicle for raising a claim of error under Apprendi and its progeny[.]” Maye v. State, 51 Fla. L. Weekly S116, 2026 WL 1346031, at *1 (Fla. May 14, 2026). That is, an Apprendi claim is not cognizable under rule 3.800(a).

McCartney now commendably and correctly concedes that Maye controls the instant appeal and requires affirmance of the Order. See Braggs v. State, No. 3D26-0135, 2026 WL 1882987, at *1 (Fla. 3d DCA July¹, 2026). We therefore affirm the Order, without prejudice to McCartney filing a timely Florida Rule of Criminal Procedure 3.850 postconviction motion in the lower court.²

Affirmed.